Category Archives: Role of Courts

Laws
take. It’s what they’re for. Taxes take dollars from some people and distribute
them to other people. Traffic laws take away drivers’ opportunity to speed
through intersections. Zoning restrictions take from neighbors their ability to
build apartments in their backyards. Talk to me about a law’s requirements and
you’ll be talking about a taking.

The ubiquitous
nature of takings is why the Supreme Court’s decision in Knick v. Township
of Scott was, perhaps, its
most consequential decision of the last Term.
The case dramatically expanded the range of circumstances in which a
person can challenge a state or local law in federal court under the Takings
Clause, which states that “private property [shall not] be taken for public use,
without just compensation.” Given the current Court’s deregulatory impulses,
the end result could endanger many redistributive laws at the local level, including
inclusionary zoning rules, rent controls, and every other health and safety
regulation that “takes.”

In this moment of crisis for the rule of law, a number of thinkers on the left have prescribed new strategies for progressives to shift reigning ideas about constitutionalism and the law. Jedediah Purdy, for example, has argued that part of the answer is to “reclaim the Constitution” by articulating visions of how constitutional rules can promote true democracy. In Purdy’s view, strengthening voting rights and the rights of non-citizens, promoting economic citizenship, and reforming the criminal legal system should be central to a left vision of the Constitution. He argues these substantive ideas pose a challenge to the status quo distribution of power, resources, and life chances. Eyeing a different branch of government, Samuel Moyn has urged progressives to resist the “juristocracy” and to shift our vision for change away from the courts and towards legislators at all levels. Moyn bases his analysis on the idea that in the short term, legislatures will be more likely than Trump-appointed judges to enact laws that reduce inequality.

Purdy and Moyn generate important insights for left lawyers and social justice activists. But neither identifies where we should look for the substance of left legalist vision, or the process by which we should derive one. How is it that we, as progressives, should generate and evaluate the desired ends of constitutional doctrine or legislative change? Addressing this question is essential for a renewed left legalism of the sort this blog and its community hope to provoke.

As we suggested in our prior piece, we believe a left political agenda must be grounded in solidarities with social movement and left organizations, largely outside of formal legal and elite academic spaces. (Willie Forbath, too, recently gestured on this blog at the relationship between social movements, labor, and left legalism.)The prevailing underlying presumption of much legal discourse is that the formulation and interpretation of legal doctrine requires specialized expertise. Past waves of left legalist critique, such as Critical Legal Studies, reflected this traditionally elitist approach to law by remaining confined within elite institutions and purveyed by law professors, sometimes in impenetrable language. Like Purdy and Moyn, we care deeply about democratic engagement, but we believe that the institutional choice between courts and legislatures misses the bigger picture: that a new left legalism should be derived from social movements fighting for justice on the ground.

One of today’s most urgent questions is how to combine an analysis of capitalism with an analysis of democracy. The rolling socio-economic crises of the last decade, highlighted by the global financial meltdown, have laid bare the extent to which American society is marked by fundamental and irreconcilable conflicts between those enjoying economic power and those subject to the vagaries of the market. At the same time, the constitutional system, plagued by legislative dysfunction and extreme counter-majoritarianism, is incapable of implementing popular policy—let alone resolving endemic collective problems. American capitalism generates profound social and material dispossession, yet American democracy either facilitates these developments or seems helpless to address them. Why is this the case? And to what extent is the existing constitutional order—its basic ideological and institutional terms—at least partly to blame?

Since the forging of Cold War liberalism in the mid-twentieth century, elites have offered the same, familiar account—in both electoral politics and in the study of constitutional law—of the relationship between the constitutional order and the economy. The prevailing theory is that the structures of legal-political decision-making do not favor particular social groups. Instead, through an intricate system of checks and balances—overseen by a Supreme Court enjoying powers of judicial review—the constitutional process produces essentially just outcomes while ensuring that no single political or social actor wields overwhelming authority. This structure of constraint substantively pushes decisions away from the extremes of fascism and communism and toward a moderate middle ground of ameliorative reform and steady collective improvement.

Although some may be suspicious of the Whiggish story of progress, a bedrock assumption underlying this account has been widely held—even among left-liberal circles. This is the idea that the constitutional structure and its discursive traditions remain essentially agnostic as to existing distributional battles. They can be used productively to pursue virtually any end—up to and including socialism. As the New Deal victories seemed to confirm, constitutional process and language carry no essential theory of political economy. To the extent that legal-political outcomes have remained in line with a vision of market capitalism and a limited welfare state, this is simply the product of popular will: the complex balance of views expressed across the constitutional system.

But this account ignores a fundamental critique of the constitutional order, one leveled by labor and black radicalism in the first four decades of the twentieth century before Cold War ideas took such an extreme hold. For those activists, the history of sustained racial, indigenous, gender, and class subordination made clear that the country was not then and had never truly been democratic. Rather, the constitutional order systematically operated to expand the strength of a racial and economic minority.

Ask not for whom the First Amendment tolls: It tolls for you. Or so I argue in an essay just published at the Columbia Law Review online. It’s called “The Lochnerized First Amendment and the FDA: Toward a More Democratic Political Economy”—a boring title for a vital and urgent problem. Courts, speaking in the name of the First Amendment, are “freeing” us from regulatory approaches that have worked for decades to protect us from snake oil and inform us about the products we put in our bodies. How did we arrive here? And how might demo­cratic prerogatives retain control over the webs of commodity exchange upon which our lives depend? The essay addresses these questions, trying along the way to model how law and political economy analysis can contribute to our understanding.

The FDA is a key accomplishment of both the Progressive Era and the New Deal and perhaps the most muscular of all federal agencies. It regulates one-fifth of the consumer economy, and has enjoyed extraordinarily high levels of influence and public trust throughout its long history. This popularity may have something to do with the fact that the FDA gained its powers through successive waves of democratic demand for its intervention when “free markets” proved deadly. (If you don’t know the story of thalidomide, which left a trail of destruction around the world in the 1950s and 1960s, here is a vivid introduction). Perhaps unsurprisingly, the FDA has also been a prime target of neoliberals, who resent its extensive powers. Industry lobbying and sustained criticism from Chicago-school types and have had an impact; several recent laws have weakened the agency. But the respect and support the FDA commands have made legislative assaults challenging. Perhaps that is why industry—and industry funded groups—have invested in the use of the courts to attack its power.

What does that attack look like? The cases are astonishing. Some suggest that drug companies have a free speech right to market drugs for unproven uses. These threaten the system that the FDA has used for decades to develop the evidence we need to understand whether drugs work. Nonetheless, citing these cases, the FDA appears poised to substantially deregulate drug marketing. New commercial speech doctrine may also be the demise of a law passed recently to protect consumers from misleading claims about supposedly low-risk tobacco products. E-cigarette companies (mostly backed, apparently, by big tobacco) argue that Congress doesn’t have the power to force them to validate claims that their products are low risk, though we know relatively little about their long-term implications.

The logic of these cases could go quite a bit further, even undermining the FDA’s ability to regulate medicines and tobacco altogether. I don’t spell out the many possible implications for food, supplements, and cosmetics, but you can read between the lines.

How did this happen? Here’s where law and political economy offers important insights. If we read the cases that build this new commercial speech doctrine, cases like Virginia Pharmacy and IMS v. Sorrell, with the literature on neoliberalism in mind, we see that they have been deeply shaped by market supremacist thinking. They mobilize images of markets, subjects, and the state that are not only contestable, but deeply undemocratic.

How we might we best respond to this new and rather ghoulish First Amendment? There are some excellent doctrinal arguments that could bring the courts back from the brink, as I describe in the essay. Importantly, though, these cases should also cause us to rethink our needs for public infrastructure. If courts thrust us into a world with more limited authority over private markets, we must envision a much more substantial role for the public—in this case, for example, by expanding public funding for health research. This approach would sidestep recent court decisions in addition to having far-reaching benefits for health democracy or health justice. It is also an instance of a broader point. By undermining public-oriented regulation of private companies, the advance of market supremacy inside of constitutional doctrine paradoxically pushes the campaign for democratic control up a level. New public infrastructure that displaces or routes around an increasingly ungovernable private sector would, in addition to cutting out the profit-oriented middleman, more easily brush off a Lochnerized First Amendment. The parallels to Medicare For All—spurred on by attacks to the ACA—are easy to see.

The piece was a response to the superb conference and volume on “Free Expression in an Age of Inequality” put on recently by Columbia Law School, Columbia Law Review, and the Knight Institute. If you’ve read this far, you’re incurable, and you should also check out the other pieces published as part of the symposium, especially Jed Purdy’s “The Bosses Constitution.” People often ask me for work describing how to “do LPE.” These two pieces provide possible examples.

Amy Kapczynski (@akapczynski) is a Professor of Law at Yale Law School.

There’s a lot for liberals to despair about these days and the Kavanaugh appointment sharpened several sources of that despair. After such an intensely partisan fight about the Court, and especially after the remarkable, norm-shattering partisan performance of the Justice himself at his final confirmation hearing, some of the liberal worry is inevitably focused on questions about the Supreme Court. Should “we” favor more judicial restraint, more “taking the constitution away from the courts,” more strategies of challenging the Court through politics? These are important questions; there’s much more to say about them. (Indeed I will say more about them, with my coauthor Willy Forbath, as they relate to the project of our book.) But these questions may not be the most urgent ones right now, with an election weeks away. The most urgent ones, I think, have to do with the specter of the possibility that an emerging American majority—racially diverse, young, and well to the left of the current government on both economic and social issues—may face the prospect of living for a considerable period, perhaps much of our lives, under minority rule.

The struggle over Judge Kavanaugh’s nomination for the US Supreme Court and the subsequent horrible spectacle of the Senate hearings brought about a “genuine question” by a leading economist, Dani Rodrik: “how do we prevent ‘the Supreme Court has always been political’ argument from morphing into ‘judicial independence and the rule of law are political charades’? Asking for friends in Hungary, Turkey, Poland, etc..” Several authors on this blog (here, here, and here) have given excellent answers to the question, insofar as it affects the United States.

They have been less sure, however, about what to do with the perspective of Rodrik’s “friends in Hungary, Turkey, Poland, etc..”

Judge Brett Kavanaugh, now very close to controlling the decisive vote on the Supreme Court, resembles other candidates for high political office. He has a constituency–the Federalist Society, anti-abortion activists, everyone who hopes to see Obamacare weakened and affirmative action ended–and other constituencies in opposition. Lots of money is being raised and spent for and against his confirmation. He has a set of commitments that are plainly at the center of national controversies–over the issues already mentioned, and also over the role in money in politics, the future of criminal justice and environmental, and no doubt a great more that we may not exactly “know” from his judicial record, but which is pretty confidently inferred from his outlook and affiliations. His confirmation, in other words, is a lot like choosing a senator, except that he’ll be much more powerful than almost any individual senator–and never has to answer to voters, now or in the future.

Nonetheless, it has been an article of faith–or at least a relentless rhetorical trope–on both sides of the fight that “politicization” of the judiciary is a kind of corruption and crisis. What distinctive judicial or rule-of-law values draw the line between a court, with or without Judge Kavanaugh, and other aspects of politics? What does it mean to say, as Amy Kapczynski does in her opening post, that courts are political, but not in the same way that politicians are?

Amy’s answer is that courts “morph” politics into “universalizing argument,” giving reasons for their decisions that are supposed to apply to everyone, and that this helps to articulate a picture of a political community that is “ours,” that has a “we.” (She disclaims the thought, implicit in some defenses of courts, that there is anything in legality itself that will produce liberal or left-leaning results: procedure and universalizing efforts at neutrality are not, she tells us, independent of visions of justice or the good society.)

I think we have to look into the abyss and admit the possibility that politics really does come first, that the question is not for or against politicization, but what kind of politicization. My reflections are meant in a spirit of earnest joint inquiry, and of uncertainty. (As I sometimes feel obliged to say on Twitter, tweets do not imply self-endorsement.)

The nomination of Brett Kavanaugh to the Supreme Court is on the knife’s edge. The stakes are higher than for the confirmation of any American judge in our lifetimes. For that reason alone, it is probably not a good time to stage a general debate whether and in what sense law is something more than politics by other means. But I would conduct it by separating out the sort of high stakes judicial appointments and decisionmaking that has attracted everyone’s interest in the past few weeks.

Low stakes judicial decisionmaking is inevitably political too, obviously. Generations of critical work has established that low stakes judicial process is shot through with politics, and generally helps reproduce illicit structures, especially through criminal and private law. But if that debate will always deserve to continue, one can legitimately conclude that high stakes judicial decisionmaking is different. That it is politics by other means is much more straightforward and undeniable, and the primary question is how progressives should think about it.

Thursday’s Supreme Court confirmation hearing was a stomach churning, nauseating affair. Christine Blasey Ford laid her life on the tracks, knowing full well that trains delivering important men can rarely be stopped. That was enough, but then came the turn: Brett Kavanaugh, partisan warrior. He tore into Democrats for a process almost entirely dictated by Republicans. He seethed with explosive anger, which he weaponized to advance his own career. He lied and evaded. And walked away somehow having improved his chances of being appointed to the Supreme Court.

If “courts are political,” do we have grounds to object to this display? Dani Rodrik asked a similar question on Friday in a broader frame: “How do we prevent ‘the Supreme Court has always been political’ argument from morphing into ‘judicial independence and the rule of law are political charades’? Asking for friends in Hungary, Turkey, Poland, etc.”

The question is much deeper, as he rightly points out, than our immediate American fiasco. And it is an urgent one for the LPE crowd, raised up as we were on the insights of legal realism and critical legal studies, yet committed – as we also are – to articulating a set of claims to the right and the good that could help make our democracies more fair and just.

In the coming days and weeks, a few of us will offer some ideas on these questions to see where our conversation might lead us. To start us off, I’ll expand a little on the epigrammatic answer I gave to Rodrik: “In a democratic system judges are not political in the way politicians are. They must hear all comers; give reasons; express a universal principle — they morph politics and produce universalizing argument.”